Karnataka High Court
Dundappa S/O Irappa Narasannavar vs Basappa S/O Ramappa Chougula on 5 November, 2024
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NC: 2024:KHC-D:16124
RSA No. 5271 of 2012
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
RSA NO. 5271 OF 2012 (DEC/INJ)
BETWEEN:
SHRI DUNDAPPA
S/O. IRAPPA NARASANNAVAR, AGE: 74 YEARS,
OCC. AGRICULTURE AND PENSIONER,
R/O. BORAGALL, TQ. HUKKERI,
DIST. BELGAUM-591312.
... APPELLANT
(BY SRI. ANAND L SANDRIMANI AND
Digitally
VISHAL
signed by
VISHAL
NINGAPPA
SRI. SANTOSH B. RAWOOT, ADVOCATES)
NINGAPPA PATTIHAL
PATTIHAL Date:
2024.11.13
11:27:40
+0530
AND:
1. SHRI BASAPPA S/O. RAMAPPA CHOUGULA,
AGE: 57 YEARS, OCC: AGRICULTURE,
R/O. BORAGALL,TQ. HUKKERI,
DIST. BELGAUM-591312.
2. THE SECRETARY GRAM PANCHAYAT OFFICE,
BORAGALL, TQ. HUKKERI,
DIST. BELGAUM-591312.
... RESPONDENTS
(BY SRI. RAMESH I ZIRALI, ADVOCATE FOR R1;
SMT. KIRTILATA R PATIL, HCGP FOR R2)
THIS RSA IS FILED U/SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 18-10-2011 PASSED IN
R.A.NO.04/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HUKKERI, DISMISSING THE APPEAL FILED AGAINST THE
JUDGMENT AND DECREE DATED 08-12-2010 PASSED IN
O.S.NO.163/2007 ON THE FILE OF THE CIVIL JUDGE
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NC: 2024:KHC-D:16124
RSA No. 5271 of 2012
SANKESHWAR, DISMISSING THE SUIT FILED FOR DECLARATION
AND INJUNCTION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
ORAL JUDGMENT
(PER: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA)
The plaintiff is before this Court, assailing the
concurrent findings of facts recorded by the Courts below,
wherein, the suit seeking for declaration and injunction
came to be dismissed.
2. Suit for declaration to declare that the plaintiff
is the owner of VPC No.236 and for permanent injunction
restraining defendant No.1 not to construct building in
ABCD area as shown in the handsketch map. It is the case
of the plaintiff that under the sale deed dated 22.02.1979
he has purchased the suit property from one Bharmappa
Basavantappa Hittanagi for valuable sale consideration of
Rs.2,000/- and after the purchase of the property which
includes house, courtyard, backyard, he is in possession of
the same. Further, that defendant No.2 without having
NC: 2024:KHC-D:16124
any right, title or interest over the said backyard and
courtyard has got the name of defendant No.1 entered in
the office records as VPC No.236/A. It is contended by the
plaintiff that defendant No.1 on basis of the said entry is
trying to construct in the said backyard, hence, the
present suit for declaration of injunction.
3. Defendant No.1 filed written statement inter
alia contending that the backyard belongs to defendant
No.1, it is an open space and it is numbered as VPC
No.236/A, which belongs to the ancestors of defendant
No.1. Further, that originally VPC No.236 belongs to one
Gurusiddawwa Basavanni Hittanagi, after her death, her
son Bharamappa succeeded to the property and said VPC
No.236 is not having any backyard. Defendant No.1
denied the plaintiff having any right, interest or title over
the backyard and sought for dismissal of the suit.
4. The trial Court based on the pleadings framed
the following issues:
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"1. Whether the plaintiff proves that he is owner of entire
VPC No.236 including ABCD area as shown in plaint
handsketch?
2. Whether the plaintiff proves that he is in possession of
ABCD area as shown in the plaint handsketch which is
measuring East-West 15 Ft North-South 14Ft?
3. Whether the plaintiff proves that the defendant No.1 is
causing illegal interference into the suit property i.e,
ABCD area as shown in the plaint hand sketch?
4. Whether the defendant No.1 proves that he is owner of
VPC No.236/A, which is situated towards Western side
of the house of the plaintiff?
5. Whether the defendant No.1 proves that he is entitled
for the compensatory cost of Rs.5,00,000/-
6. Whether the plaintiff is entitled for the relief as sought
for?
7. What Order or Decree?"
5. In order to substantiate their claim the plaintiff
examined himself as PW1, three witnesses as PWs2 to 4
and marked documents at Exs.P1 to P25. On the other
hand, defendant No.1 examined himself as DW1, two
witnesses as DWs2 and 3 and marked documents at
Exs.D1 to D6.
6. The trial Court based on the pleadings, oral and
documentary evidence arrived at a conclusion that:
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(i) The plaintiff has failed to prove that he is the
owner of the entire VPC No.236 including ABCD
area as shown in the handsketch map;
(ii) The plaintiff failed to prove his possession in
respect of ABCD area.
(iii) Defendant No.1 is the owner of the VPC
No.236/A situated towards the Western side of
the house.
By the judgment and decree, the trial Court
dismissed the suit of the plaintiff.
7. Aggrieved, the plaintiff preferred appeal before
the First Appellate Court. The First Appellate Court while
re-appreciating the entire oral and documentary evidence,
independently, affirmed the judgment and decree of the
trial Court. Aggrieved, the plaintiff is before this Court.
8. Heard the learned counsel appearing for the
appellant, learned counsel appearing for respondent No.1
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and learned HCGP appearing for respondent No.2 and
perused the judgment and decree of the Courts below.
9. Learned counsel appearing for the appellant
submits that the appellant/plaintiff is the owner of the suit
property by virtue of the registered sale deed executed in
his favour and defendant No.1/respondent No.1 has not
produced any document of his title to the said property
and the conclusion arrived by the Courts below in
dismissing the suit of the plaintiff warrants interference.
Learned counsel submits that there arises a substantial
question of law to be considered in the present appeal.
10. Per contra, learned counsel appearing for
respondent No.1 justifies the judgment and decree of the
Courts below and submits that VPC No.236 was not having
backyard, and the backyard is been given separate
number as VPC No.236/A, that the trial Court and the First
Appellate Court on findings of facts have rightly arrived at
a conclusion that the plaintiff has failed to prove his title
and possession over the suit property and the concurrent
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findings of facts does not warrant any interference under
Section 100 CPC and sought for dismissal of the appeal.
11. The case of the plaintiff is that, under Ex.P1-
Sale Deed dated 22.02.1979, he purchased VPC No.236
which is having backyard. In support of his contention, he
examined himself as PW1 and got marked documents at
Exs.P1 to P25. Exs.P3 to P6 are the photographs, Ex.P8 is
the VPC extract of VPC No.236 for the year 1998-99,
Ex.P9 is the VPC extract of VPC No.236/A for the year
1998-99, Exs.P10 to P20 are the Tax paid receipts in
respect of VPC No.236. On the other hand defendant No.1
examined himself as DW1 and marked documents at
Exs.D1 to D6. Ex.D1 is property extract of VPC No.236 for
the year 1961-62, Ex.D2 is the property extract of VPC
No.236 for the year 1998-99, Ex.D3 is the property extract
of VPC No.236/A for the year 1998-99, Ex.D5 is the
property extract of VPC No.236/A for the year 1979-80
and Ex.D6 is the certified copy of the Panchayat Register
for the years 1979-80 and 1998-99.
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12. The plaintiff contends that the backyard forms
part and parcel of VPC No.236 and he has purchased the
backyard under the registered sale deed dated 22.02.1979
at Ex.P1. The trial Court while appreciating the documents
placed by the parties, held that the registered sale deed at
Ex.P1 there is only description about the house and also
placed reliance on Ex.D1, wherein, the name of earlier
owner was indicated and in the description column it was
mentioned as a house, and arrived at a conclusion that at
the time of purchase of VPC No.236 by the plaintiff it was
not having a courtyard, and the material on record
indicates that VPC No.236/A was standing in the name of
the father of the defendant No.1 and after the death of his
father, his name appeared in the revenue records. The
trial Court considering the oral and documentary evidence
arrived at a conclusion that the plaintiff has failed to
establish his title over the suit property.
13. The First Appellate Court being the last fact
finding Court, on re-appreciating the entire oral and
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documentary evidence and arrived at a conclusion that the
purchase of property by the plaintiff under the sale deed
does not indicate the backyard been purchased and
backyard is been given different survey number as VPC
No.236/A.
14. In the absence of any documentary evidence
placed by the plaintiff to indicate that the backyard VPC
No.236/A forms part and parcel of VPC No.236, the Courts
below were justified in arriving at a conclusion that the
plaintiff has failed to prove his title over the suit property.
The manner in which the Courts below have appreciated
the entire oral and documentary evidence, this Court is of
the considered view that the same does not warrant any
interference under Section 100 CPC and no substantial
question of law arise for consideration in this appeal,
accordingly, this Court pass the following:
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NC: 2024:KHC-D:16124
ORDER
i) The Regular Second Appeal is hereby
dismissed.
ii) The judgment and decree of the Courts below
stands confirmed.
Sd/-
(JUSTICE K.S.HEMALEKHA)
RH
